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Preston Green

The Real Problem with Prepunishment

Postpunishment legal systems convict people of crimes that they have committed, while prepunishment legal systems convict people of crimes that they will or would commit. This paper debunks two assumptions in the philosophical literature: 1) that prepunishment exists only in science fiction, and 2) that prepunishment is unproblematic for deterrence theorists. First, I show that the differences between the actual world and hypothetical cases of prepunishment — even those presented in Philip K. Dick’s “Minority Report” — are nothing but smoke and mirrors. In fact, there is no morally relevant difference between what happens in “Minority Report” and what often happens in the real-world punishment of “attempt” offenses. Therefore, if prepunishment is morally wrong, as non-consequentialist moral philosophers have argued, then vast reforms to current legal theory are required. Second, I reveal severe problems with prepunishment that stem from purely consequentialist considerations. Most importantly for deterrence theorists, prepunishment systems have no deterrent power. These conclusions call for changes in our thinking about both the philosophical importance and moral status of prepunishment.

When
Thu Oct 4, 2018 5am – 6:30am Coordinated Universal Time